On The System About Witness To Testify In Court Chinese Civil Litigation

The testimony of witnesses is an important form of evidence of China's official one, but because of legal and related judicial interpretations of the provisions are too careless, the testimony of witnesses has become a practice trial, the most Snub evidence. Therefore, study of witnesses to testify in court system has an important value. This paper analyzed the system of witnesses to testify in court.The first chapter of witnesses to testify in court a brief overview of the system. First of all, it is about the definition of witness, which has different understandings between nations due to the differences in their cultural traditions, litigation models, legal customs, and ways of thinking, but people from different countries all agree on the non-substitutability, universality, independence, and passivity of the identity of witness, which thus has established the vital status of witness testimony as a indispensable form of legal evidence. Secondly, it concerns whether it is a right or an obligation of a witness to testify in court. Through an analytic demonstration, it comes to the conclusion that testimony of the witness should be treated as a legal obligation to the country and society as a citizen. Then, this chapter explains the necessity of witness testifying system from five aspects. The judge contacts directly with the evidence, so the confidence will begin to take its shape in mind through the adequate rebuttal of the two parties, which will help establish the authority of the judiciary; The witnesses be heard directly in court, will help to realize the principle of direct verbal trial; open cross-examination and certification of witness are conducive to the realization of the principle of open trial; helpful for identifying the facts of the case, to achieve the substantive justice; Based on the close relationship between people, testifying of the witness is closely related to everyone in the society, so testifying in court also insures their own expectations for witnesses themselves. Finally, it is about the value objective of the testifying system of witness in court. The objective truth is the ultimate goal that the judge is pursuing for, but the process of pursuing substantive justice shall not be at the expense of the procedural fairness. In the system of a witness to testify in court, the legitimate rights of the witness should be protected.Chapter II of witnesses to testify in court system in China were analyzed. This chapter first reviews the history of the testifying system in court which has been throughout the whole survival course of the feudal society. However, under the totalitarian rule of authoritarian doctrine, witnesses testify in court mostly due to external mandatory forces rather than their own voluntarily, which makes that their right can not get a fundamental protection. After the reform and modification of laws from the Qing dynasty, the testifying system in court began to draw on the spirit of Western laws, and has taken some measures which are more civilized. After the founding of New China, the issue of testifying system in court hasn't been given sufficient attention. The existing code of the Civil Procedure only provides for the obligation of witnesses to testify, without any reference to the protection of the rights of them. The Evidence Stipulation established by the Supreme People's Court is still not systematical and comprehensive enough, lacking of a strong maneuverability in practice.Second, this chapter presents the situation of China's testifying system in court, and the outstanding problems lie in the witness refusing to testify in court, or the low admissible rate of witness testimony and so on. It can been concluded from the list of several sets of data that the current testifying rate of witness in court is rather low in China, and the judge's use of the testimony of witness can not be optimistic; Then, there is an in-depth analysis on the causes of the current situation of the testifying system in China. It is elaborated from four aspects: For thousands of years, China has formed the traditional idea of self-preservation, and people are seriously shame for appealing to court, which makes it a wise move to keep away from the proceedings; with a weak concept of legality, people never get to know testifying in court as a performance of fulfilling their legal obligation from the legal height; a good many defects in legislation make that there is no clear penalties for those witnesses who refuse to testify in court or perjure themselves. From the treatment of the witness in She Xianglin case, it can be seen the serious shortage in the safeguard system for witnesses and their close relatives in China, and there is either no practical program specification on witnesses to testify in court; In practice, the judiciary even treat the testimony of witnesses as a tool, and the witness testifying in court still remains on the obligations to be borne by them, but there is not adequate attention given to the protection of the rights of witnesses.Chapter III of the sound system in my witness made several suggestions. In the beginning, this chapter first re-examines the testifying system in court from the perspective of philosophy. Harmony is a noble goal and ideal state that human beings are pursuing for in their social life, and the currently promoted harmony in contemporary judicial philosophy is in succession with the historical idea that harmony is the most precious, so an advanced procedural notion should be filled with people's thinking, with the abandoning of the practice of taking the witness as a tool, and fostering a new concept to respect for the witnesses in the community.Next, through the analysis on the related systems in countries of civil law and common law, this chapter focuses on the reconstruction of the testifying system in court from a legal perspective. First, establishing a mandatory system to force witnesses to testify, in the way of subpoena to summon witnesses to appear in court to testify, and some measures such as warning, fining, issuing a warrant can be taken on those people who have been summoned but refused to testify without any good reasons. Refining the other special circumstances in which witness can not appear in court in the fifth paragraph of Item I, Article 56th of the Evidence Stipulation, and canceling the provisions revealing all the terms which are inconvenient in operation; Protecting the testimonial privileges of witness, and analyzing the necessity of this right from the point of view of maintaining the ethical relationship between relatives, but ignoring the normal emotion will make the provisions of law do not turn out as the wishes, but based on the occupational characteristics,professionals are required to keep a secret for their counterparts. This part makes provisions about the testimonial privilege of witness in China from three perspectives of the permits scope, content, and time. Second, establish the vow system of witnesses. Our Constitution gives citizens the freedom in religious belief, and there are indeed a wide range of religious groups, and in real life there are a large number of patterns which are similar to oath. In China, different ways of making a vow can be set up according to different groups of people. When swearing an oath, the dignity of vowing procedures should be reflected, and the content should include that the witnesses should bear the bad consequences against them if they still provide false testimony under oath, and after the oath the witnesses have to sign or stamp in the affidavit. Third, design for enquiring procedures. First of all, two parties will inquire the witness, and asking permission from the court is only the need of speaking order in court hearing procedures. Then, the judge proposes questions to the witness, and the judge's inquiry is complementary. Fourth, standardize the disciplinary system on perjury. Different measures such as lecturing, standing the loss, fining, and detention and so on, can be taken respectively according to different stages of perjury, and those with serious circumstances shall be criminally liable, punished based on the provisions of the Criminal Code 305; As for the perjury by a witness which led to loss to one party, the witness should make compensation to the party based on the general principles of tort law. Fifth, perfect the protection system for witnesses. Related protection laws for the personal rights of witnesses should be carried out as soon as possible, and the protection target shall not be limited to the witnesses themselves, but including their close relatives in; it is far from enough to protect the personal safety of witnesses, but their personality rights, right of reputation, and other related rights also should be guaranteed. A special witness protection authority can be set up, at this stage, it is unrealistic to exert steep demands on the taken measures, but it is necessary to keep their identity confidentiality dark before testifying and provide safe shelter for some time after that, etc. In those cases concerned with the protection of witnesses, the witness can be released from the cost of litigation, and the related legal aid agencies designated by the State will provide legal services for them. The right of getting financial compensation for witnesses is analyzed from the three aspects including the scope of compensation, the cost burden, and the paying subject. Finally, this paper suggests setting up a comprehensive social security system, to provide an all-wave protection for the rights of witnesses.